For the first time in our history, U.S. prisons house over a million inmates, enough to populate a city larger than San Francisco. Building prisons is the new growth industry, as the American public reacts to a perceived increase in violence and politicians take a hard line toward crime. But this eagerness to construct more prisons raises basic questions about what the community wants and will tolerate and what the Supreme Court will sanction.
In this timely book, Norman Finkel looks at the relationship between the "law on the books," as set down in the Constitution and developed in cases and decisions, and what he calls "commonsense justice," the ordinary citizen's notions of what is just and fair. Law is an essentially human endeavor, a collection of psychological theories about why people think, feel, and behave as they do, and when and why we should find some of them blameworthy and punishable. But is it independent of community sentiment, as some would contend? Or, as Finkel suggests, do juries bring the community's judgment to bear on the moral blameworthiness of the defendant? When jurors decide that the law is unfair, or the punishment inappropriate for a particular defendant, they have sometimes nullified the law.
Nullification represents the jury's desire not to defeat but "to perfect and complete" the law. It is the "no confidence" vote of commonsense justice refusing to follow the path the law has marked out--and pointing to a new path based on what seem to be more just grounds. Finkel brings to life the story behind the jury and judicial decisions, interweaving anecdotes, case law, and social science research to present a balanced and comprehensive view of important legal and social policy issues.
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At my university, and doubtless at others as well, there is a recurring, seasonal clash involving life and death, order and disorderand lawn care. When winter suddenly turns to spring, students begin to mix and play on the grassy quad, walking where they will, though seldom on the designated paths. As they create their own paths, however, an annual nightmare starts for the Building and Grounds Department, for "Grounds" sees soil and mud beneath the vanishing grass, haunting and mocking their best efforts. When you work for Grounds, April is the cruelest month.
Alarm sets in among the Grounds crew, for graduation is to take place at the end of May on that very quad, and the arriving parents will no doubt expect to see a well-groomed green in return for the sizable green fees they have been paying. Reseeding efforts are launched, but they fail almost immediately, since the students pay no heed to those little "Keep Off" signs. Panic grows but the grass does not, and eventually Grounds lays new sod over the offending earth.
It is not so much the recurring cycle but its ending that is of greatest relevance here. In the seasonal standoff between students and Grounds, the cycle breaks when Grounds throws in the towel and lays down bricks along the lines the students have worn. The general question was stated by a character in John Barth's novel The End of the Road: Should paths be laid where people walk, or should people walk where paths are laid? And the issue of better lawns leads us by analogy to a question about better law: Should the law follow the path laid by community sentiment, or should thecommunity follow the path the law has laid? This is the central question of this book. It involves the law, on the one hand; what I call "commonsense justice," on the other; and the relationship between the two.
There are two types of "law." There is the type we are most familiar with, namely "black-letter law," the "law on the books." This is the law that legislators enact, the law that was set down by the Founding Fathers in the Constitution, the law that evolves through common-law cases and through appeals decisions. It is the law that law school students study, judges interpret, and jurisprudes analyze. But there is another lawalthough "law" may be too lofty or lowly a term to describe it: I call it "commonsense justice," and it reflects what ordinary people think is just and fair. It is embedded in the intuitive notions jurors bring with them to the jury box when judging both a defendant and the law. It is what ordinary people think the law ought to be.
These commonsense notions are at once legal, moral, and psychological. They provide the citizen on the street and the juror in the jury box with a theory of why people think, feel, and behave as they do, and why the law should find some defendants guilty and punishable and others not. Black-letter law also has its theories of human nature, culpability, and punishment. But there is mounting and persuasive evidence that the "law on the books" may be at odds with commonsense justice in many areas.
For example, ordinary citizens' views on privacy rights in general, and on the right to die in particular, appear notably discrepant from the law's strictures. Among the laws and rules governing "insanity," there is a hefty literature showing that jurors construe "insanity" in ways that do not conform to legal tests. In self-defense cases, particularly when a battered woman kills her spouse, we again see commonsense justice at odds with black-letter law: differences emerge as to whether a threat is "serious" and "imminent," and as to whether an "objective, reasonable man" or a more subjective perspective should dominate. And in the legal area of why some murders are reduced to manslaughter, we find a complex legal theory of human nature that defines when a provocation is sufficient to ignite emotions and passions to such a degree that reasonable people might not think but strike. Here, too, the psychological theory appears to diverge from jurors' views, which give history, context, and subjectivity a much greater role. All of this, and much more, leads us to an idea of commonsense justice and to problematic discrepancies with the law.
But immediately we can raise an objection to the notion of commonsense justiceone that challenges either the existence of such justice, or the claim that it relates to, affects, and even directs the law. Stated in the form of a question, the objection is: Why study commonsense justice (if it even exists) when the law is independent of community sentiment and should remain so? This view claims that the law is different from ordinary views of justice and that legal reasoning ought to remain hermetically sealed from common contaminants. Justice Antonin Scalia twice raised this "independence" objection during the Supreme Court's spring 1992 term. In his dissent in the death penalty case of Georgia v. McCollum, he took the Court to task for basing its decision on community sentiment and societal harmony. And in the abortion decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, Scalia was "appalled" by the fact that the Court would be "strongly influenced ... by the substantial and continuing public opposition the decision has generated." Turning from his brethren to the citizens, he stated, "How upsetting it is, that so many of our citizens ... think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus."
This objection must be answered. In defense of commonsense justice, I offer three counterpoints to the "independence" position, according to which judges should retire from the realm of community to their cloistered chambers, engage in something called "legal reasoning," and derive an objective body of law. First, and most simply, judges cannot do this. We don't have to be Freudians to realize that judges, like ordinary citizens, cannot dissociate and compartmentalize their history and the community's influences merely by closing a door and opening a law book. As the great American jurist Oliver Wendell Holmes Jr. said, "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." Holmes's point about judges is even more apt for legislators: those who legislate with complete independence are likely to have their tenure abruptly halted on election day. Community sentiment, then, is present in chambers, in Congress, and in the mind, whether it is avowed or unconscious, and the ablest and most experienced judges and legislators use these intuitions and views of public policysince, as Holmes said, they "know too much to sacrifice good sense to a syllogism."
The second point against the "independence" position notes that there are certain areas of law where the Supreme Court has given "community sentiment" a central if not determinative role. The Eighth Amendment is one such area. Most citizens clearly know the phrase "cruel and unusual punishment," but clarity ends when we ask, "What does it mean?" An illustration may help. On May 5, 1994, an American teenager, Michael Fay, was caned by the authorities in Singapore for vandalism. In the weeks prior to his ordeal, the topic was hot in the United States. Many people called the punishment "cruel and unusual"; the U.S. trade representative, the secretary of state, and even the president weighed in on that side. That different countries and cultures might have different views on whether a punishment is cruel and unusual is interesting, if unsurprising. But the point I wish to make is that the same punishment, had it been inflicted in the United States in the nineteenth century, would not have raised such heat, let alone charges that it was cruel and unusual.
The Supreme Court has understood this and has hinged the meaning of the phrase "cruel and unusual punishment" to the "community's evolving standards of decency," realizing that as society becomes more enlightened, the meaning of the phrase will change. In its efforts to take into account the nonstatic nature of "cruel and unusual punishment," the Court has turned increasingly to objective ways of gauging community sentiment, in order to determine if a certain punishment for a crime is disproportionate in the eyes of the community. Ironically, perhaps, Justice Scalia leads the push for a solely objective determination of community sentiment; he would like to see justices refrain from inserting their own views and making "philosopher-king" decisions.
Thus, the first counterpoint notes that community sentiment does affectconsciously or unconsciouslyjudges' decisionmaking processes, and the second counterpoint notes that certain substantive areas of the law require judges to take community sentiment into account. The third counterpoint brings the community into the law in an even more direct way. The juryoften referred to as the "conscience of the community"brings the community's judgment to bear on the moral blameworthiness of the defendant. Beyond finding the facts, jurors sometimes reconstrue the law, and at other times even decide on the law. When jurors reconstrue the judge's instructions, whether these are insanity instructions, self-defense instructions, or the definition of "malice" or "provocation," jurors are bringing their own interpretations and sense of justice into play. And when they decide that a law is unfair, or that a punishment is excessive, or that a punishment does not fit a particular defendant, juries have, on occasion, nullified the law. They are, clearly, implementing commonsense justice: registering a "no confidence" vote, refusing to follow the path the law has laid down.
Those who are critical of this practice, which is known as jury nullification, see it as a form of anarchy. If juries used their power to nullify with any significant frequency, or reconstrued the law according to their whim, disparate verdicts and unequal justice would result, since laws for all would be applied only to some. Few would find such an outcome comforting. But to ignore or simply condemn jury nullification is to disregard the truth of a prediction made by Roscoe Pound, who asserted that in "all cases of divergence between the standard of the common law and the standard of the public, it goes without saying that the latter will prevail in the end.". If we take an inquiring rather than a critical view of jurors, we may see nullification as the jury's desire not to defeat the law but (in George Fletcher's terms) "to perfect and complete the law." If we learn to "read" what jurors are saying about the law, we may come to see that they are showing us a new pathone that, to their minds, is laid on more just grounds.
Commonsense justice and its relation to black-letter law are the subject of this book. In picking the term "commonsense," which is already rife with meanings, I am likely to cause misunderstandings unless I make the ground clear. When I use the noun "common sense," I do not mean folkish knowledge, often propounded in the form of a cliche, which is taken as a truism until it runs smack into another folksy dictum that contradicts it. And when I apply the adjective "commonsense" to justice, I mean something much deeper, more specific, and far less hackneyed.
The words have been used in a variety of ways. Michael Perlin, for instance, writes about "ordinary common sense," by which he means prereflexive, often unconscious thinking, replete with myths, stereotypes, and simplistic heuristics, and quite immune to facts. This unflattering kind of common sense, which Perlin finds among lawmakers and justices in their utterances about insanity, might well be found in the populace as well. But, again, this is not what I mean, for I believe that commonsense justice is more deliberative and conscious, and quite sensitive to facts and to foundational issues of justice.
Still another form of common sense is associated with public opinion poll results. When politicians take the pulse of the community through opinion polls, they are sampling the common sense of the people across specific issues (or so it is said). These results are often interpreted as the "will of the majority." But Ronald Dworkin, in his book Law's Empire, makes a useful distinction between majoritarian "fairness" (the will of the majority) and "justice" (which concerns whether decisions "secure a morally defensible outcome"). "Justice," in Dworkin's termsor "commonsense justice," in my terms-is different from mere majoritarian sentiment as expressed in a poll. Polling questions, which typically are broadly framed and admit restricted responses, are likely to yield answers that are significantly different from the ones jurors would give when confronted by a live defendant, and when given specific facts and actual legal instructions. If we wish to elicit people's deepest, deliberative sense of justicetheir "morally defensible outcome"then we must turn from polls to a different methodology, in which we give people "real life" cases, with specifics, and find out what verdicts and sentences they would render, and why.
Research into juror and jury decisions has progressed and proliferated over the last quarter-century. When Kalven and Zeisel published their seminal work The American Jury, readers got an peek into the black box of the jury room. But is was an indirect peek, for the bulk of Kalven and Zeisel's data came not from jurors but from judges, who speculated about why juries did what they did. Now, more than twenty-five years later, we have better methods and richer findings about juries and jurors, and about the principles of justice they hold dear.
Table of Contents
1. In Search of Community Sentiment
2. Understanding Nullification
3. Revealing Jurors' Sentiments
4. How Jurors Construct Reality
5. Objectivity versus Subjectivity in the Law
6. The Sacred Precinct of the Bedroom
7. The Right to Die
8. Cruel and Unusual Punishment
9. Murther Most Foul
10. Death Is Different
11. The Juvenile Death Penalty
12. On Self-Defense justice
13. The Self-Defense Drama
14.The Maddening Changes in Insanity Law
15. How Jurors Construe Insanity
16. Murderous Passions, Mitigating Sentiments
17. The Path of Commonsense Justice